Florida/Georgia Personal Injury & Workers Compensation

...sion of this Court in Cramp v. Board of Public Instruction, Fla. 1960, 125 So.2d 554. Our current problem requires an analysis of the decision of the Supreme Court in order to determine whether that Court has completely nullified the requirements of Section 876.05, Florida Statutes, F.S.A....

...vice of vagueness implicit in the words "aid", or "support" or "advice" or "counsel" or "influence". As we read the decision with its supporting mandate it becomes our duty to eliminate the objectionable language from the loyalty oath prescribed by Section 876.05, Florida Statutes, F.S.A....

...persedeas, we have previously announced that the relative rights of Cramp and the powers of the appellee Board under the last cited statute are not presented by this record. For the guidance of the appellee and others charged with the enforcement of Section 876.05, Florida Statutes, F.S.A., only the following portion of the oath prescribed by the statute shall in the future be valid: "I, ____ a citizen of the State of Florida and of the United States of America, and being employed by or an offic...

...However, a careful examination of the Supreme Court's decision in Cramp will show that it is not authority for appellant's argument. Cramp v. Board of Public Instruction of Orange County , Florida, involved an action by a school teacher challenging the constitutionality of a loyalty oath required by section 876.05, Florida Statutes....

...Appellant Cramp is a teacher in the Orange County Public School System. He has been such for approximately nine years. Recently, the appellee Board of Public Instruction discovered that appellant had never subscribed to the so-called loyalty or non-communist oath required of all public officials and employees by Section 876.05, Florida Statutes, F.S.A....

...As an incident to the main relief he sought a temporary restraining order to prevent the defendant school board from dismissing him from employment pending ultimate determination of his rights. By the allegations of the sworn complaint, Mr. Cramp, in actuality, affirmed each and all of the statements required by Section 876.05, supra....

...We in turn granted appellant's application for a stay order pending our consideration of the merits of this interlocutory appeal. This is a power we enjoy as ancillary to our appellate jurisdiction. Article V, Section 4, Florida Constitution. Appellant here contends that there is a reasonable probability that Section 876.05, Florida Statutes, F.S.A., is unconstitutional and that for this reason the Chancellor should have granted the requested temporary injunction....

...We do note in passing that the complaint contains no allegations regarding such notice or such hearing. Neither does it contain any allegation regarding the possibility of suspension pending any such hearing. Also, it is presently unnecessary to consider the constitutionality of Section 876.05, supra....

...Gen., Tallahassee, Fla., for intervenor. Before SIMPSON, Circuit Judge, and YOUNG and SCOTT, District Judges. SCOTT, District Judge. The plaintiff in this case, a teacher in the Orange County, Florida, school system, seeks on behalf of herself and others similarly situated to have Section 876.05 of the Florida Statutes, F.S.A....

...tates, as secured by the First, Fifth and Fourteenth Amendments to the United States Constitution. Jurisdiction exists under 28 U.S.C. § 1343(3), 28 U.S.C. § 2201 and 42 U.S.C. § 1983. *448 Plaintiff alleges that (1) the loyalty oath contained in Section 876.05 of the Florida Statutes, F.S.A., which all state employees are required to execute as a condition of employment, is so vague and ambiguous that it cannot be interpreted with any reasonable degree of certainty and, since a purported vio...

...pproval by the Board of Public Instruction of Orange County. At no time prior to her employment was the plaintiff informed by the defendants of the necessity that she sign a loyalty oath; it appears, however, that the plaintiff had some knowledge of Section 876.05 of the Florida Statutes, F.S.A....

...1966). Plaintiff in this case has gone through the application *450 process for securing employment with a state-operated school system. As a condition to her employment with the school system, she was required to execute an oath in accordance with Section 876.05 of the Florida Statutes, F.S.A....

...In addition, we find that plaintiff's cause of action meets the other requirements for a class action under Rule 23(a) and (b), Federal Rules of Civil Procedure. THE OATH Having disposed of the procedural aspects, we move to consideration of the oath prescribed by Section 876.05 of the Florida Statutes, F.S.A. The section reads in full: "876.05 State employees; oath "All persons who now or hereafter are employed by or who now or hereafter are on the payroll of the state, or any of its departments and agencies, subdivisions, counties, cities, school boards and districts of the free pu...

...339, 17 L.Ed.2d 235 (1966); Knight v. Board of Regents of University of State of New York, 269 F.Supp. 339 (S.D.N.Y.1967), affirmed, memorandum, 390 U.S. 36, 88 S.Ct. 816, 19 L.Ed.2d 812. It is, therefore, Ordered and adjudged: I. The following language of Section 876.05 of the Florida Statutes is constitutional, and the state may condition employment on the execution of an oath containing the following language: "I, ........, a citizen of the State of Florida and of the United States of America, and being employed by or an officer of ...........

...itution of the United States and of the State of Florida; * * * that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence". II. We find that all provisions of the oath prescribed by Section 876.05 of the Florida Statutes, F.S.A....

...tion of these disapproved provisions. III. In light of our previous holding, all but the following language from Section 876.07 of the Florida Statutes, F.S. A. is held to be without force or effect: "Any person having taken the oath provided for in § 876.05 and who thereafter * * * expresses any belief in * * * the overthrow of the government of the United States or of the state by violence or force * * * shall immediately be discharged from *454 his employment by the employing authority and h...

...ce, and the name of such person shall not be printed on the ballot as a qualified candidate". IV. A permanent injunction will issue from this Court restraining the defendants, their agents, officers and employees from further enforcement of Sections 876.05 and 876.07 of the Florida Statutes, F.S.A., in a form other than that approved above....

...I think that the court has properly disposed of the question of standing and that it correctly decides that this case meets the requirements for a class action prescribed by F.R.Civ.P. Rule 23(a) and (b). I concur also in the majority's holding that the oath prescribed by the Florida statute (F.S.A., Section 876.05) in the amended form submitted by defendants to plaintiff is unconstitutional in each of *455 the particulars pointed out by the court....

...nist Party" or "that I am not a member of any organization or party which believes in or teaches, directly or indirectly, the overthrow of the Government of the United States or of Florida by force or violence", which provisions are now contained in Section 876.05 of the Florida Statutes, F.S.A....

...aintiff the salary that has been adjudged to be due and owing. 4. The costs shall be hereafter taxed in favor of the plaintiff and against the defendants. NOTES [1] The corresponding provisions of Sec. 876.07 of course fall with the portions of Sec. 876.05 held unconstitutional....

...The state then appealed so the defendant is now appellee. Under one ground it was argued by appellee, apparently with success, that by federal law the field of sedition legislation had been preempted by the federal government and, therefore, the statutes relied on were no longer valid. Secs. 876.05 through 876.10, Florida Statutes 1953, and F.S.A....

...The Attorney General contends that a loyalty oath such as appellee was required to take does not fall in the same category as sedition, one being a matter of allegiance to the government, the other a matter of commission of the crime of treason, or sedition. We are immediately concerned with the first of the statutes, Sec. 876.05, supra, which provides, in brief, that all persons in the service of the state, as well as all candidates for public office, shall subscribe to a certain oath, the contents of which relevant to this controversy are: That the affiant is not "a...

...Also, he represents that the state concedes these to be the only questions to be resolved by this court and he takes the position that an affirmative answer to either must result in an affirmance. As we understand the record, the ruling constituted a decision that Sec. 876.05, supra, was unconstitutional....

...munist Party. Appellee argues that by federal law the government of the United States has nullified "sedition legislation by the States, including the instant Act," to quote from appellee's brief. Chapter 25046, Laws of Florida, Acts of 1949, F.S.A. § 876.05 et seq....

...tion of officials of the state as well as the federal government. In this act criminal anarchy, criminal communism, criminal nazi-ism and criminal fascism were denounced. Then followed the enactment of Chapter 25046, supra, one section of which, now 876.05, supra, we are now considering....

...912.] Up to this point we have treated of the question whether or not the statutes requiring loyalty oaths have become ineffectual because of the opinion of the Supreme Court of the United States in Commonwealth of Pennsylvania v. Nelson, supra. We think they have not. We now turn to the contention of the appellee that Sec. 876.05, supra, was not intended to have any retrospective effect....

...nd purposes of the Communist Party from other sources. Section 876.02(4) and (5), outlawing the Communist Party, contained no finding of fact by the legislature to stimulate its passage but eight years later, when Chapter 25046, Acts of 1949, F.S.A. § 876.05 et seq., was enacted, imposing the loyalty oath for officers and employees of the State, there was a specific finding "that the Communist Party is in fact and in truth not a political party but is rather and instead a union and organization...

...Sibley argues that the referee who presided in his Bar discipline case and all but one of the justices of this Court are without authority to act because they have *348 allegedly failed to properly execute loyalty oaths to serve as constitutional judicial officers with their respective courts. Sibley relies on section 876.05, Florida Statutes....

...tment to this Court, which oaths are maintained by the Secretary of State or the Division of Elections. All of the justices appointed to the Court in 1998 or earlier executed written, notarized oaths of office in full compliance with the dictates of section 876.05....

...'s case, likewise complied with the constitutional requisites prior to assuming the duties of his office. Further, as an elected judicial officer, Judge Prescott was required to submit a sworn, notarized Oath of Candidate form, which fully satisfies section 876.05, Florida Statutes, as a prerequisite to qualifying as a candidate for the position he now holds....

..., months before the March 7, 2008, order suspending Sibley from the practice of law. *349 Thus, even if Sibley were correct in arguing that the failure of a judicial officer to have a written, executed, and notarized loyalty oath on file pursuant to section 876.05 would deprive such officer of the authority to act, a majority of the Court fulfilled the statute's requirements long before Sibley's present case arose, and all of them had by the time of Sibley's suspension. These factual inaccuracies notwithstanding, Sibley also misperceives the function of the statute in question. Section 876.05 does not relate to the jurisdiction or authority of judicial officers. At most, it is a limitation on the authority of those in charge of issuing vouchers to pay state employees or officers who have not executed a loyalty oath. Sibley's asserted interpretation of section 876.05, that judicial officers who fail to properly execute the prescribed oath and have it duly notarized lack authority to act, would bring the statute into direct conflict with the Florida Constitution....

...of office) on which I am now about to enter. So help me God.", and thereafter shall devote personal attention to the duties of the office, and continue in office until a successor qualifies. This oath incorporates the less specific oath required by section 876.05, which provides: (1) All persons who now or hereafter are employed by or who now or hereafter are on the payroll of the state, or any of its departments and agencies, subdivisions, counties, cities, school board and districts of the fr...

...In this instance, the Florida Constitution establishes the requisite oath of office for judicial officers in this State. Upon taking the prescribed oath, such officers are obligated to devote their personal attention to the duties of their respective offices. If we were to interpret section 876.05 in the manner urged by Sibley, the statute would be in direct conflict with the Constitution and we would be constrained to declare the statute unconstitutional....

...favored toward its validity, rather than applying a rule of strictness which would defeat and make the fundamentals of legislative power meaningless. Hanson v. State, 56 So.2d 129 (Fla.1952). For these reasons, we examine the origins and purposes of section 876.05. Section 876.05 was first enacted in 1949....

...Instruction of Orange County, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961) (holding unconstitutionally vague that part of the oath deleted in chapter 83-214). A comparison of the language of the oath of office provided in article II, section 5(b) and as enrolled in section 876.05 reveals they are more similar than dissimilar....

...To the extent this portion of the statute is interpreted to enlarge the requirements of the oath of office set forth in the Constitution for the investiture of constitutional officers, it is unconstitutional and unenforceable. We need not and do not go so far. Rather, we hold that the dictates of section 876.05 are satisfied when a judicial officer duly takes the oath of office as set forth in the Constitution and limit our holding to only those judicial officers who take the oath of office as set forth in the Constitution. We do not address the validity or the requisites of the statute in any other context than the one extant here. Further, even if the referee or any of the justices inadvertently failed to comply with the technical requirements of section 876.05 by executing a loyalty oath in writing, and if we also had interpreted the effect of that failure to be that suggested *351 by Sibley, the de facto officer doctrine, which has been long established in Florida, would nevertheless cure any defect....

...the bench in Florida takes office complied with the requirements of Article VI of the United States Constitution and 4 U.S.C. sections 101 and 102. We concur with and adopt the federal court's reasoning and analysis on this issue. [2] Significantly, section 876.05 requires any person "who now or hereafter [is] employed by or who now or hereafter [is] on the payroll of the state" or any of its subdivisions to execute the prescribed loyalty oath....

...McCormick of Maguire, Voorhis & Wells, Orlando, Richard *556 W. Ervin, Atty. Gen., Ralph E. Odum and William J. Roberts, Asst. Attys. Gen., for appellee. THORNAL, Justice. Appellant Cramp who was plaintiff below seeks reversal of a final decree sustaining the validity of Sections 876.05-876.06, Florida Statutes, F.S.A....

...ns of the State and Federal Constitutions. Plaintiff Cramp had served approximately nine years in the public school system of Orange County. It was then discovered that through an oversight, he had never been required to execute the oath required by Section 876.05, Florida Statutes, F.S.A....

...Finally, he says that the Florida constitutional oath prescribed by Article XVI, Section 2, is exclusive and, therefore, does not permit any additional legislative prescription. The appellee School Board by its brief undertakes to defend the statute against each of the attacks leveled by the appellant. By Section 876.05, Florida Statutes, F.S.A., all persons employed by the State or any county or city, or school board, are required to subscribe to the following oath: "I, ____ a citizen of the State of Florida and of the United States of America, and b...

...that the oath be filed with the employing governmental agency prior to the approval of any salary voucher. Section 876.06, Florida Statutes, F.S.A., provides for the discharge of any person who refuses to subscribe to the quoted oath. *557 Sections 876.05-876.06, supra, were Sections 1 and 2, Chapter 25046, Laws of Florida 1949....

...13, 92 A.2d 663; Fitzgerald v. City of Philadelphia, 376 Pa. 379, 102 A.2d 887; Kaplan v. School District of Philadelphia, 388 Pa. 213, 130 A.2d 672; State ex rel. Schweitzer v. Turner, 155 Fla. 270, 19 So.2d 832. Appellant contends further that the oath prescribed by Section 876.05, supra, is unconstitutional for the reason that it imposes requirements additional to those stated in the constitutional oath prescribed by Article XVI, Section 2, Florida Constitution....

...to be qualified, the following items must be received by the filing officer by the end of the qualifying period: 1. [A] properly executed check drawn upon the candidate's campaign account. . . . 2. The candidate's oath . . . . 3. The loyalty oath required by § 876.05, signed by the candidate and duly acknowledged....

...a member of any organization or party which believes in or teaches, directly or indirectly, the overthrow of the Government of the United States or of Florida by force or violence. Id. at 368 U.S. at 280 n. 1, 82 S.Ct. at 277 n. 1 (citing Fla. Stat. § 876.05)....

...ce of the commission to him by the Acting Govern- or.” On January 17, 1955, John S. Byington filed in the office of the Secretary of State his oath of office as County Judge of Vo-lusia County, a loyalty oath executed pursuant to the provisions of Section 876.05 to 876.10, Florida Statutes, F.S.A., and a properly executed surety bond’in the principal amount of $5,000, dated' January 13, 1955, upon which was endorsed the written approval of the State Comptroller and the Board of County Commissioners of Volusia County....

prescribed oath pursuant to section 876.05, Florida Statutes? In sum: While section 876.05, Florida Statutes,

INFLUENCE TO THE COMMUNIST PARTY . . . .'? Section 876.05, F.S., prescribes an oath which is a minimum

...This case came before the Court for hearing on Defendant's Motion to Dismiss or Motion for Summary Judgment, and on Plaintiffs' Cross-Motion for Summary Judgment. After argument of counsel and consideration of the court file, the Court finds as follows: At issue in this case is the facial constitutionality of section 876.05(1), Florida Statutes. Section 876.05(1) is a loyalty oath which is required of all State of Florida *975 employees and officers. The form of this oath, as set forth in section 876.05(1), is as follows: I, _________________, a citizen of the State of Florida and of the United States of America, and being employed by or an officer of _____________ and a recipient of public funds as such employee or officer, do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida. Section 876.06, Florida Statutes, provides that any employee required by section 876.05 to execute the specified oath who fails to do so must be immediately discharged from employment and removed from the payroll....

...ing" who knowingly or carelessly permits an employee who fails to execute the oath to continue in his job is guilty of a second-degree misdemeanor. Section 876.10, Florida Statutes, provides that any person who falsely executes the oath set forth in section 876.05 is guilty of perjury. [1] Section 876.09 provides that sections 876.05 through 876.10 apply to all employees and elected officers of the State, as well as all cities, towns, counties and political subdivisions in Florida....

...Amadi, who is a full-time employee of the Plaintiff City of Orlando, is an alien lawfully admitted for permanent residence in the United States and a citizen of Nigeria. In the Complaint, Plaintiff Amadi alleges that he would be guilty of perjury if he were to execute the oath set forth in section 876.05(1)....

...Plaintiff City of Orlando and the City's Chief Administrative Officer, Plaintiff Robert C. Haven, allege that they will be required to discharge Amadi or suffer criminal penalties if Plaintiff Amadi fails to execute the oath. Plaintiffs seek a judgment by this Court declaring sections 876.05 through 876.10 unconstitutional....

...ere shall be no Florida residence requirement for any person as a condition precedent to employment by the state; however, preference may be given to Florida residents in hiring. Fla.Stat. § 110.105(3). As noted above, however, pursuant to sections 876.05, 876.06, 876.08, 876.09 and 876.10, Florida Statutes, every State of Florida employee or officer must swear that he or she is a citizen of the United States and of the State of Florida as a condition of continued employment, and criminal penalties are attached for the failure of public employers to require execution of the prescribed oath. The Office of the Florida Attorney General has twice considered the applicability *976 of the loyalty oath prescribed in section 876.05 to non-citizens....

...On each occasion, the Attorney General concluded that a noncitizen who is otherwise eligible for government employment in the State of Florida may qualify for employment by taking a modified oath in which the words "citizen of the State of Florida and of the United States of America" are deleted from the oath prescribed in section 876.05 and appropriate words are substituted. FLA.ATT'Y GEN.OPS. 69-121, 84-66. The State Legislature, however, has not amended section 876.05 to reflect that such modification is lawful....

...RED that the Plaintiffs' Cross-Motion for Summary Judgment be and is hereby GRANTED in that it is ORDERED that the words: "a citizen of the State of Florida and of the United States of America, and" are found to be unconstitutional as they appear in section 876.05 of the Florida Statutes and should be deleted in the administration of the requirements of said loyalty oath in the future....

...Kraft Tamarac City Attorney 7525 Northwest 88th Avenue Tamarac, Florida 33321-2401 Dear Mr. Kraft: You have asked for my opinion on substantially the following questions: 1. May a person elected to the Charter Board of the City of Tamarac assume that office without taking the statutorily prescribed oath set out in section 876.05 , Florida Statutes? 2. May the language of the oath prescribed in section 876.05 , Florida Statutes, be modified by individual officeholders or employees? In sum: 1. All elected officers of the City of Tamarac are required by law to take the oath set forth in section 876.05 , Florida Statutes. 2. The form of the oath prescribed in section 876.05 (1), Florida Statutes, is mandatory and may not be altered....

...ut who are not citizens. Question One According to your letter, the individual in question was elected to the position of Charter Board Member in the City of Tamarac in March 1996. When he was subsequently asked to take an oath of office pursuant to section 876.05 , Florida Statutes, he declined for religious reasons....

...He has not been sworn into office and has offered to execute an alternative statement that would include some of the language of the statutory oath and other language that is not reflected in the statute. In order to resolve this matter, you have asked for this office's opinion. Section 876.05 , Florida Statutes, prescribes an oath that must be taken as a minimum requirement for elected public service....

...6 The oath must be taken before a person authorized to take acknowledgments of instruments for public record and must be filed with the records of the governing official or employing governmental agency. 7 Pursuant to section 876.09 , Florida Statutes, "[t]he provisions of ss. 876.05 - 876.10 shall apply to all employees and elected officers of the state, including the Governor and constitutional officers and all employees and elected officers of all cities, towns, counties, and political subdivisions, including the edu...

...on all public employees and elected state and local officers. 8 Therefore, it is my opinion that all elected officers of the City of Tamarac, including a person elected to the Charter Board, are required by law to take the loyalty oath set forth in section 876.05 , Florida Statutes. Question Two This office has considered and approved the modification of the loyalty oath set forth in section 876.05 , Florida Statutes, in circumstances where the affiant was not a citizen of the United States but was a resident alien....

...in the following form[.]" 11 It would appear that one purpose of any statute that creates a form is to provide uniformity and this purpose would be defeated by allowing individual officers and employees to craft their own versions of a loyalty oath. Therefore, it is my opinion that the language of the oath set forth in section 876.05 (1), Florida Statutes, is mandatory and must be followed with the exceptions noted above....

...fies that he is bound in conscience to perform an act faithfully and truthfully[.] An affirmation is a solemn statement or declaration made as a substitute for a sworn statement by a person whose conscience will not permit him to swear.") 4 Sections 876.05 (1), and 876.09 (1), Fla. Stat. (1995). 5 Section 876.07 , Fla. Stat. (1995). 6 And see, s. 99.021 (1)(a), Fla. Stat. (1995), which requires that a candidate swear "that he or she has taken the oath required by ss. 876.05 - 876.10 , Florida Statutes[.]" 7 Section 876.05 (1) and (2), Fla....

requested the advice of this office on this matter. Section 876.05(1), F.S., requires "[a]ll persons who now or

...rrying out this task, he does not have to engage in the sort of racial discrimination the fourteenth amendment proscribes. On the contrary, his oath of office — which requires him to uphold the Constitution and laws of the United States, Fla.Stat. § 876.05 — requires him to avoid such unlawful conduct....

...Carl Bond challenges by habeas petition his conviction for lewd and lascivious act in the presence of a child, a conviction that was obtained twenty years ago. He claims that the arresting officer, assistant state attorney, and trial judge did not comply with the filing of an oath of office as required by section 876.05, Florida Stat *356 utes (1991)....